The following is the mem. of opinion:
“ This action is founded upon an implied contract for money had and received. Hence an appeal from any judgment rendered in the action is not allowed to this court by section 191 of the Code, if the matter in controversy is less than $500. The judgment, exclusive of costs, is for $238.70. The plaintiff was satisfied with the judgment and did not appeal therefrom. The defendant was not satisfied and appealed, and hence thereafter the only controversy between the parties was over that judgment. The General Term reduced the judgment to sixty dollars and interest, and affirmed it as. thus modified. The plaintiff complains of the modification, and the matter still in controversy is no more than the amount of the original judgment. But if we go behind the original judg*704ment, it is impossible to see upon the plaintiffs own evidence and claim at the trial how the matter in controversy was as, much as $500. Hence we have no jurisdiction to entertain, this appeal, and it must be dismissed, with costs.”
Henry G. Willcox for appellant. Mathew Marx, respondent in person. Earl, J.,reads for dismissal of appeal.
All concur.Appeal dismissed.